Arenas Pleads Guilty to Carrying a Pistol Without a License (CPWL) in D.C.

by Jamison Koehler on January 16, 2010

The Washington Post reported this morning that Gilbert Arenas of the Washington Wizards has pleaded guilty in D.C. Superior Court to the felony charge of Carrying a Pistol Without a License (CPWL).  The offense carries a maximum fine of $5,000 fine and up to 5 years in jail.  Sentencing in front of D.C. Superior Court Judge Robert Morin has been set for March 26, 2010.  According to the Post, the plea was part of a deal in which the prosecutors – the U.S. Attorney’s Office, which prosecutes this type of case in D.C. – have agreed not to ask for more than six months in jail.

Photograph by Associated Press

According to Section 22-4504(a) of the D.C. Code, it is illegal to carry a pistol without a license or any deadly or dangerous weapon that is capable of being concealed.  If the possession is outside the person’s “dwelling place,” business place or property, the crime is a felony.  Otherwise, it is a misdemeanor subject to a $1,000 and a maximum 1 year sentence.  (While still on the books in D.C., the misdemeanor charge  of possession within one’s home was recently struck down by the U.S. Supreme Court in District of Columbia v. Heller as violating the Second Amendment.)

Judge Robert Morin is known in D.C. as a very capable, pleasant and reasonable judge.   While he is not bound by the terms of the plea agreement, a point he reportedly emphasized to Arenas at the hearing, I think it is unlikely, absent some gross error or injustice, that he will tinker with an agreement that has been so carefully worked out by the two sides. Arenas is represented by Kenneth L. Wainstein, a partner and member of the White Collar Defense and Corporate Investigations Practice at O’Melveny & Myers LLP.

In “Gilbert Arenas’ Rush to Lose,” prominent New York lawyer and legal blogger Scott Greenfield criticizes Arenas and his lawyer for failing to challenge the charges under Heller.  Writes Greenfield:

“Almost all the stars were aligned in this case.  The only two stars out of place were Arenas and Wainstein.  And Arenas gave up without a fight.  We will never know whether he could have beat the case by challenging the law under Heller.  We will never know whether it was Wainstein or Arenas who made the decision, and whether it was a good choice or a bad choice.  It’s likely that Judge Morin is too good a judge to use the Arenas sentence to make an example of him rather than treat him like a human being, but we’ll never know whether Wainstein told Arenas how fortunate he was that, given a bad situation, he had the opportunity to fight.”

Gilbert Arenas' lawyer Kenneth L. Wainstein

While I have tremendous respect for Mr. Greenfield and am a regular reader of Simple Justice, I have to disagree with him on this one. First of all, Heller applies to firearms in one’s home, not the locker room where the Arenas incident took place.  Justice Scalia’s decision specifically emphasizes that the Second Amendment right is not unlimited, and I do not agree, as Greenfield suggests, that Arenas’ possession of the firearm in his place of business – the locker room – is a “tiny baby step from possession in the home.”  It is in fact an enormous step.

Second, based on my experience (and Greenfield acknowledges this), few clients want to become the poster child for anything.  Most clients are embarrassed by the criminal charges and just want to put the whole sorry matter behind them as quickly and as quietly as possible.  Even if Arenas could fight the case all the way up to the Supreme Court and win, could you blame Arenas for not wanting his name to become synonymous with firearm possession?

“Roe” was at best a very reluctant participant in Roe v. Wade, and later blamed the case for ruining her life.

When I practiced criminal law in Pennsylvania, there was a very famous pro-defendant suppression case called Commonwealth v. Marlon Banks.  You could hardly litigate a motion to suppress on a drug case without citing Banks. One of my colleagues was thus overjoyed when, who should walk into her office but the one and only Marlon Banks, facing yet another drug charge.  Banks was largely unaware that he had become such a celebrity.  He was also tremendously embarrassed by it.

How fun would it be to cite Banks while defending Banks?  The closest I ever came to that type of situation was when I used another famous Pennsylvania case — Commonwealth v. Dunlap — to argue a motion to suppress in front of the same trial judge who had been overturned on the case.  Coincidentally, the arresting officer was even the same and, damn, wouldn’t you know but he made the exact same mistake while arresting my client.  I walked up to the assistant district attorney after the motion and asked:  Am I the only person who noticed this coincidence?  The ADA smiled.  “I’m guessing the judge didn’t miss it,” she replied.

Since I’ve already digressed, I’ll conclude with a story my criminal procedure professor told us in law school.  When his mother found out that Ernesto Miranda of the famous Miranda v. Arizona case had died, she told her son:  “Oh, what a shame.  After all that man has done for our country!”  I’m thinking Miranda wasn’t too proud of his involvement in that case either.

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